Citation Nr: 0929543
Decision Date: 08/07/09 Archive Date: 08/14/09
DOCKET NO. 07-14 860 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Seattle, Washington
THE ISSUES
1. Entitlement to service connection for Crohn's disease.
2. Entitlement to service connection for anemia, including
as secondary to Chrohn's disease.
3. Entitlement to service connection for sinusitis.
4. Entitlement to service connection for chronic obstructive
pulmonary disease (COPD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. L. Wasser, Counsel
INTRODUCTION
The Veteran served on active duty from November 1980 to July
1981.
This case comes to the Board of Veterans' Appeals (Board)
partly on appeal from a January 2006 decision by the RO in
Seattle, Washington that in pertinent part, denied service
connection for Crohn's disease and sinusitis. This case also
comes to the Board on appeal of an October 2006 RO decision
that denied service connection for COPD and anemia. A
videoconference hearing was held before the undersigned
Veterans Law Judge in May 2009.
The issues of service connection for Crohn's disease, anemia,
and sinusitis are addressed in the REMAND portion of the
decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
Finally, the Board notes that the RO has established service
connection for an abdominal scar, characterized as a
"residual of sigmoidoscopy." From a review of the service
treatment records and post-service medical records, it
appears that the scar in question is in fact due to an in-
service laparoscopy or laparotomy, not from a sigmoidoscopy.
FINDINGS OF FACT
In May 2009, prior to the promulgation of a decision in the
present appeal, the Board received notification from the
appellant that she wished to withdraw her Substantive Appeal
as to the issue of service connection for COPD.
CONCLUSION OF LAW
As to the issue of service connection for COPD, the criteria
for withdrawal of a Substantive Appeal by the appellant have
been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38
C.F.R. §§ 20.202, 20.204 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service Connection for COPD
In an October 2006 decision, the RO denied service connection
for COPD. A notice of disagreement was received from the
appellant as to this issue in November 2006. A statement of
the case was issued in June 2007. A Substantive Appeal (VA
Form 9) was received from the appellant in July 2007.
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202. Withdrawal may be made by
the appellant or by his or her authorized representative. 38
C.F.R. § 20.204. The appellant, via a letter received by the
Board in May 2009, has withdrawn her appeal as to the issue
of service connection for COPD and, hence, there remain no
allegations of errors of fact or law for appellate
consideration. Accordingly, the Board does not have
jurisdiction to review the appeal of this issue and it is
dismissed.
ORDER
The appeal of the RO's denial of service connection for COPD
is dismissed.
REMAND
Although further delay is regrettable, the Board finds that
further development is required prior to adjudication of the
Veteran's claims for service connection for Crohn's disease,
anemia, and sinusitis. 38 U.S.C.A. § 5103A; 38 C.F.R. §
3.159.
The Veteran contends that she has Crohn's disease, anemia,
and sinusitis that were incurred during her active duty
service. She also contends that she has anemia due to
Crohn's disease.
With respect to sinusitis, the Board notes that service
treatment records show that the Veteran was treated for
sinusitis in November and December 1980. On discharge
examination in June 1981, her sinuses were listed as normal.
The examiner noted that she had sinusitis in November, and
now had no complaints and no sequelae. In June 2007, a
private physician, D.S.O., MD, indicated that the Veteran had
sinus disease. As the record includes a diagnosis of
sinusitis in service, a current diagnosis of sinusitis and
the Veteran's statements to the effect that she has had
sinusitis ever since service, the Board finds that an
examination with respect to the etiology of the Veteran's
sinusitis is necessary to decide this claim. See McLendon v.
Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4).
With respect to the Veteran's claims for service connection
for Crohn's disease and anemia, service treatment records
reflect that the Veteran was seen on multiple occasions for
complaints of abdominal pain, and underwent extensive
testing, to include upper gastrointestinal series, small
bowel follow through, barium enema, laparoscopy, and
proctoscopy, among others. She underwent an exploratory
laparotomy with Meckel's diverticulectomy and incidental
appendectomy in May 1981. Crohn's disease was not diagnosed
during service.
In December 2004, R.M.G., MD, indicated that the Veteran had
a history of chronic disease including anemia, potential
factor VIII abnormality, and potential Crohn's disease. In
May 2005, the Veteran's private physician, V.P., MD, noted
that the Veteran had a past medical history of history of
Crohn's disease status post distal small bowel resection as a
teenager, and macrocytic anemia felt secondary to a B12
deficiency.
The Veteran underwent an October 2005 examination performed
for VA by QTC. Upon review of the examination report, it is
unclear whether the examiner reviewed the Veteran's claims
file prior to providing his opinion, as it appears that much
of the report is based solely on the Veteran's reported
history, rather than a review of the medical records.
Moreover, the examiner indicated, "For the claimant's
claimed condition of CHROHN'S DISEASE, there is no diagnosis
because there is no pathology to render a diagnosis. It does
not cause significant anemia. It does not cause
malnutrition." The Board finds that this examination report
is inadequate, as it does not include a rationale, and as it
does not appear that the examiner reviewed the Veteran's
claims file. Hence, another VA examination should be
scheduled to determine the etiology of any current Crohn's
disease and/or anemia. 38 C.F.R. § 4.2 (2008); McLendon,
supra; Barr v. Nicholson, 21 Vet. App. 303 (2007).
The Veteran has argued that she has anemia as a result of
Crohn's disease. She has not received specific notice with
regard to substantiating a claim of secondary service
connection. On remand, appropriate notice should be sent.
Also, the Veteran has reported receiving VA medical treatment
for the claimed conditions at the VA Medical Center, American
Lake Division, in Tacoma, Washington. Such records are not
on file and must be obtained prior to appellate review.
Records generated by VA facilities that may have an impact on
the adjudication of a claim are considered constructively in
the possession of VA adjudicators during the consideration of
a claim, regardless of whether those records are physically
on file. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v.
Derwinski, 2 Vet. App. 611 (1992). VA has a duty to seek
these records. 38 C.F.R. § 3.159(c).
Finally, the Veteran testified that she has been receiving
Social Security Administration (SSA) disability benefits
since approximately 2007. Although it appears that the RO
has attempted to obtain the records associated with her claim
for SSA benefits, the SSA determination and a complete set of
medical records are not on file. Appropriate action to
obtain all records associated with any SSA claim must be
accomplished before adjudication can be made on the merits.
See generally Murincsak v. Derwinski, 2 Vet. App. 363, 372
(1992); Baker V. West, 11 Vet. App. 163 (1998).
Accordingly, the case is REMANDED for the following action:
1. Issue appropriate notice on the
Veteran's claim of service connection for
anemia, to include as secondary to Crohn's
disease.
2. Contact the Veteran and ask her to
identify the VA facilities where she was
treated since service. Obtain any of the
Veteran's VA medical records not currently
associated with the claims file and
associate them therewith. If any records
are unavailable, a notation to that effect
should be made in the claims file. In
particular, the RO should attempt to
obtain VA medical records from the VA
Medical Center, American Lake Division, in
Tacoma, Washington, dated since 2001.
3. Obtain from the SSA the records
pertinent to the Veteran's claim for
Social Security disability benefits. If
such records are unavailable a notation to
that effect should be made in the claims
file.
3. Schedule the Veteran for an
appropriate VA examination to determine
the current nature and likely etiology of
any current sinusitis.
The claims folder should be made available
to the examiner for review in conjunction
with the examination. Based on the
examination and review of the record, to
include the Veteran's assertion that she
has suffered sinusitis since service, the
examiner is asked to answer the following
questions:
Does the Veteran currently have sinusitis?
Does the evidence of record show that it
is at least as likely as not that any
current sinusitis had its onset in
service?
A rationale for all opinions expressed
should be provided. If the examiner cannot
reach a conclusion without resorting to
speculation, it should be so stated in the
examiner's report.
4. Schedule the Veteran for an
appropriate VA examination to determine
the current nature and likely etiology of
any current Crohn's disease and/or anemia.
The claims folder should be made available
to the examiner for review in conjunction
with the examination. Based on the
examination and review of the record, the
examiner is asked to answer the following
questions:
Does the Veteran currently have Crohn's
disease and/or anemia?
Does the evidence of record show that it
is at least as likely as not that any
current Crohn's disease had its onset in
service?
Does the evidence of record show that it
is at least as likely as not that any
current anemia had its onset in service?
If both Crohn's disease and anemia are
diagnosed, is it at least as likely as not
that the Veteran's anemia was caused by or
aggravated (permanently worsened beyond
the normal progress of the disorder) by
the Veteran's Crohn's disease? If the
examiner finds that the Veteran's anemia
is aggravated by Crohn's disease, he/she
should quantify the degree of aggravation,
if possible.
A rationale for all opinions expressed
should be provided. If the examiner cannot
reach a conclusion without resorting to
speculation, it should be so stated in the
examiner's report.
5. After the development requested above
has been completed to the extent possible,
the RO should again review the record. If
the Veteran's claims remain denied, the
appellant and her representative should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto before this case is returned to
the Board.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs